England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(Mr Justice Lloyd)

		Royal Courts of Justice Strand London WC2 Friday, 18th January 2002

Friday, 18th January 2002

1. LORD JUSTICE PETER GIBSON: This is a renewed application for permission to appeal from an order made by Lloyd J on 19th December of last year acceding to an application made by the defendant, Talksport Ltd, to exclude certain evidence which the claimants appeared to wish to adduce at the trial of the action which is due to commence on Monday 21st January of this year. Permission to appeal was refused by the judge and also by Pill LJ considering the matter on the papers.
2. Briefly the background is this. The claimants are the Formula 1 racing driver Eddie Irvine and the company through which he exploits and markets his name, Tidswell Ltd. They claim that the defendant had without their consent used Mr Irvine's image in connection with the advertising and promotion of the radio station known as Talk Radio, and that it did so by a flyer using a doctored image of Mr Irvine holding a radio bearing the words "Talk Radio". The action began on 22nd December 2000. The defendant in May 2001 supplied a list of the persons to whom they had sent the flyer. In June and in July the claimants' solicitors sent out a questionnaire to the recipients of the flyer asking a number of questions with a view to obtaining evidence on the issue of confusion. About 50 responses to that questionnaire were received by the claimants' solicitors. Also a witness statement dated 30th August was obtained from one of the respondents to the questionnaire, Mr Bourke, and another dated 5th September from Mr Howe.
3. On 26th February of last year Master Bowman had ordered that witness statements be exchanged by 31st July, but on the claimants' application and at their suggestion of the date to which that should be extended time was extended to 7th September. By that extended deadline the claimants' solicitors had in their possession the 50 completed questionnaires and the two witness statements. But whilst there was an exchange of witness statements on 7th September, the witness statements of Mr Bourke and Mr Howe were not supplied to the defendant's solicitors. The reason for that was that the claimants' solicitors did not want to alert the defendant to what they had been doing, because they hoped to obtain more witness statements and they did not want the defendant to have the opportunity to approach other respondents to the questionnaire.
4. In fact the defendant had in July become aware that the claimants had been conducting a survey of the recipients of the flyer. On 30th July its solicitors wrote to the claimants' solicitors saying that the responses had to be disclosed. The claimants' solicitors responded that they had not been conducting a survey of the recipients of the flyer but had been conducting a witness- gathering exercise, the correspondence in respect of which was privileged. The defendant's solicitors responded by drawing attention to authority which, they said, required the claimants to disclose the responses received to the questionnaire. That was disputed by the claimants' solicitors in a letter of 6th August. There was then silence from the claimants' solicitors until Friday 2nd November, when the claimants' solicitors wrote to say that, in the course of the following week, they would be sending copies of all the questionnaires sent out over the summer. Thus they were promising that by 9th November they would have sent to the defendant that evidence. They did not send that evidence during that week, and on 19th November the defendant's solicitors wrote saying that they still had not received the promised questionnaires. Only on 3rd December did the claimants' solicitors write. They said that they were still collating the questionnaires and would forward them, annexed to an appropriate witness statement, as soon as possible, but in the meantime they enclosed copies of the 50 replies as well as Mr Bourke's and Mr Howe's witness statements. They asked for the defendant's consent to those witness statements being tendered in evidence.
5. On 5th December the defendant's solicitors asked whether it was proposed that the questionnaires be put in evidence. On 7th December the claimants' solicitors said that the questionnaires should be put in evidence and that a witness statement was the most convenient way of doing that. The defendants promptly replied that day that they did not consider the questionnaires to be admissible, and that in the absence of an explanation of the basis of admissibility, they would apply to the court to rule that that evidence was inadmissible. At no time did the claimants themselves make application to the court for permission to extend time for further evidence.
6. On 13th December the defendant applied to the court seeking orders, amongst others, to exclude the questionnaires and Mr Bourke's and Mr Howe's witness statements. It claimed in its evidence in support that it would suffer prejudice, and in the application itself it said that it would be prejudiced in its preparation for trial if the witness statements were admitted, particularly having regard to the fact that the trial was to commence on 21st January 2002 and that the Christmas holiday period intervened. To deal with the responses, it was said, the defendant's solicitors would have to locate the individuals who provided the responses and interview them.
7. The application came before Lloyd J on 19th December. Miss Lane, appearing then for the claimants, as she does before me today, resisted the application of the defendant. She said that the claimants wanted the admission of the two witness statements and the responses of seven respondents to the questionnaire to go in. She indicated that of those respondents the claimants proposed to issue witness summonses in respect of three.
8. The judge in giving judgment referred to the submissions of counsel for the defendant opposing the application that it was far too late to put in this evidence, that it was a deliberate tactic by the claimants - I interpose the comment that that was, in effect, conceded by Miss Lane - and that it involved a plain intention to breach the court order by keeping some of the witness statements and evidence up their sleeves. The judge then continued:

"One can see why the decision was made, but nevertheless, if you do keep your evidence up your sleeve, even though the time has gone by by which you have been ordered to serve it, you run the risk that you will not be allowed to serve it. Not only was it kept secret at that stage, it was kept secret until the beginning of December. And not only that, but when it was served, it was served, as it seems to me, with wholly inadequate detail and explanation. It is, for example, not until today that the seven respondents have been identified to whom I have referred which are the ones (apart from the two who have made witness statements) on which the claimants would rely.

I would have thought that it should have been obvious to the claimants pretty soon after 7th September that they were not going to get more in the way of witness statements, and it should have been obvious that, if this material was going to go before the court with two witness statements (or even a few more), the defendants would need time to be able to contact the other respondents to the questionnaire to see what they had to say, and that it should have been possible, at the very latest, to put that material on the table in a fully explained manner, and supported (I should have thought) by an application for permission to serve the evidence notwithstanding the delay, by the beginning of October. If that had been done, the defendants would have had the best part of three months, even after the hearing of the application - possibly a little more - in which to cope with it. Leaving it until the beginning of December, some six weeks or so before trial, and putting it forward in the half-baked way that I have described, seems to me to be quite unacceptable. It seems to me that to allow this evidence to be admitted at this stage would cause prejudice to the defendants. I can see that not to allow it would cause prejudice to the claimants, although I am not sure that it is a great deal of prejudice, because I do not think the forensic weight of this material is going to be very substantial, but that is a matter for the trial judge, if it were before him. But it seems to me that, taking together the claimants' deliberate tactical decision not to serve this material by the time originally prescribed, their delaying for a further three months in serving it, and the inadequately explained way in which it was originally provided so that it is not until now, barely a month before trial, that the position is understood, is such that it would be quite inappropriate to allow the claimants to put this evidence in, and I shall not give them permission. I shall order that the questionnaires and the witness statements of Mr. Bourke and Mr. Howe are not to be admitted at trial."

9. The judge refused permission to appeal. His reasons included the following sentence:

"As a matter of pre-trial case management, I took the view that the combination of the claimants' deliberate failure to comply with the order for exchange, and the substantial delay thereafter before disclosure, and the prejudice to the defendant in trying to deal with it, made it inappropriate to allow that evidence in."

10. I have set out the judge's reasoning so fully because it appears to me, as it did to Pill LJ, to be cogent. The claimants have, nevertheless, exercised their right to renew the application for permission to appeal in open court.
11. Miss Lane accepts that this was a case management decision by the judge, but she submits that the judge erred in principle in a number of respects. First, she says that the judge erred in failing to take proper account of the lack of prejudice to the defendant in dealing with the evidence that is now sought to be put in. She says that the defendant did not claim that there was any prejudice over the admission of the two witness statements. She says that the judge failed to consider this point and to weigh it against the prejudice, which she describes as being severe, to the claimants themselves.
12. The judge did specifically find prejudice in that it was too late for the defendant to approach other respondents to the questionnaire. That was asserted by Mr Stevens in his witness statement for the defendant. Miss Lane accepts that the claimants themselves in their solicitors' letter of 10th December had said this:

"We think that the questionnaire responses should be put in as evidence as they are important to put the witness statements of Geoff Howe and Jeremy Bourke into context."

13. But she says that in her submissions she advanced alternative grounds which apparently were inconsistent with what the claimants had been saying in that letter.
14. In my judgment the judge did not err in finding prejudice in this case. To my mind it would be plainly unsatisfactory, when a questionnaire has been sent out like this to a large number of people and 50 responses have been received, simply to look at the two witness statements of Mr Howe and Mr Bourke when considering at the trial the question of confusion and not take into account all the circumstances relating to that questionnaire. The defendants would, if all the evidence went in, naturally have expected to go to the other respondents to the questionnaire to check whether useful material might be gained. It was too late to do that when the claimants disclosed this evidence.
15. Further, I can only say, having looked at the evidence, that I am surprised that Miss Lane criticises the judge for expressing the view that the forensic weight of the material is not going to be very substantial. In my experience, this sort of evidence is rarely of significance. It seems to me quite unreal to expect a judge on an application such as was faced to leave out of account his assessment of the likely probative effect of the evidence sought to be adduced. It is not as though the claimants cannot assert confusion in the absence of such evidence. I am told that there is one witness statement of a witness who can speak to actual confusion. It might be thought that the picture itself in the flyer which is the subject of complaint was eloquent. Accordingly, I would reject the submissions based on prejudice. That ground has no real prospect of success.
16. Next Miss Lane says that the judge failed to apply CPR 3.9. That applies to applications for relief from sanctions. The claimants never applied for relief from any sanction. Nor, indeed, as Miss Lane frankly admits, did she take this point before the judge. It is hardly surprising, therefore, that the judge does not advert to the circumstances listed in the lettered subparagraphs of rule 3.9(1). But, in any event, on the assumption that that rule applies it seems to me plain that the judge had before him almost all the matters which Miss Lane suggests should have been taken into account. One matter which perhaps he did not was the submission which she now makes on sub-paragraph (f), "whether the failure to comply was caused by the party or its legal representative". She says that in this case the failure was caused by the legal representatives. If an applicant for relief from a sanction wishes to take such a point, then it is for that person to make clear, with appropriate evidence, to the judge exercising his discretion that that is a point on which the applicant can properly rely. That was not done in this case. Miss Lane also draws attention to sub-paragraph (e) and the fact that there has been no other default on the part of the claimants. The judge knew that no other default was alleged.
17. The considerations which seem to me quite plainly of great significance which were before the judge were the interests of the administration of justice, whether the application for relief had been made promptly, whether the failure to comply was intentional and whether there is a good explanation for the failure. Those are the first four subparagraphs of rule 3.9(1) and it seems to me clear that each of them counts against the claimants.
18. Miss Lane then says that the sanction imposed by the judge was disproportionate. She has reminded me of what was said by Lord Woolf in Biguzzi v Rank Leisure [1999] 4 All ER 934 at 940 about the importance of the court considering whether other sanctions would do justice in the case. She submits that the judge did not consider any alternatives. The judge had in mind, because he expressly refers in his judgment to the alternative ways in which Miss Lane had put her case. But the judge was plainly impressed by the fact that the claimants had taken a tactical decision not to comply with the court's order, and that was the most important consideration in this case.
19. I cannot see that the sanction was disproportionate. It seems to me that the court is bound to take seriously the sort of conduct that one has seen in this case. The claimants' behaviour runs counter to the ethos which for some time, even before the CPR's introduction, has governed the court's approach, that is to say that cards should be placed on the table quite openly and orders intended to achieve that end should be obeyed. To allow a party to flout a court order for a tactical reason is unacceptable.
20. I therefore have no hesitation in saying that there is no real prospect of success on an appeal. Nor is there any other compelling reason why this appeal should be allowed to go ahead.
21. I shall therefore dismiss this application .
Order: Application dismissed.